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Lay Criminal Courts in Scotland: The Justifications for, and Origins of, the New JP Court

Document Cited authorities 11 Cited in Related
Vincent
Date01 September 2012
Published date01 September 2012
AuthorRobin M White
DOI10.3366/elr.2012.0120
Pages358-385
LAY CRIMINAL JUSTICE IN GREAT BRITAIN

A striking feature of criminal justice processes in Great Britain is the prevalence of lay justice. One of its two chief forms is the jury. In this form, a lay jury is fact-finder and verdict-deliverer, but in a court where a professional judge determines the law and passes sentence. The other is the lay court. In this form, a lay person is the fact-finder, law-determiner, verdict-deliverer and sentence-passer, without the participation of any professional judge.1

There is a professional legal adviser, on whom see R M White, “Justice of the Peace Courts and their legal advisers – a lay court?” 2011 JR 315.

Clearly, this second form is important, for in Scotland, lay courts currently take more than 40% of all criminal cases, a far greater proportion than is heard by juries.2

See R M White, “The importance of the new JP court” (2011) 15 EdinLR 456, and see now Scottish Government, Criminal Proceedings in Scotland 2010–11 (2012) table 3.

Their existence was recently continued by the Criminal Proceedings, etc (Reform) (Scotland) Act 2007 in the guise of the new Justice of the Peace Courts, which replaced the former District Courts and preserved what is possibly the only unpaid, single-judge, lay criminal court in the Western world.3

Though some lay justices sit in threes, and there are a handful of Stipendiary Magistrates in Glasgow.

Paradoxically, the 2007 Act continued these lay justices, despite the McInnes report (which led to the Act) recommending (albeit by a majority) that lay justices be replaced by professional “summary sheriffs”.4

Summary Justice Review Committee, Report to Ministers (2004) para 7.98.

This echoed the District Courts Act 1975 which continued lay courts in the guise of District Courts, replacing the former Burgh, Police and old JP Courts, despite a plan that they be replaced by a form of “junior sheriff” (a plan itself superseding the recommendation of the 1973 White Paper which ultimately generated the 1975 Act).5

Justices of the Peace and Justices’ Courts: Proposals for Reorganising Lay Summary Justice in Scotland (Cmnd 5241: 1973).

 Nor was that the first time that abolition of lay courts had been recommended

The idea of abolition has been resuscitated more recently in the recommendation for the creation of “district judges” in the Gill Report, where it was robustly observed that:6

Report of the Scottish Civil Courts Review (2009) vol 1 ch 4 para 178.

[i]f we had been considering this issue from first principles, we would have been minded to recommend that all summary crime should be dealt with by professional judges [including] those cases presently dealt with by justices of the peace.

 This raises the question of why Scotland has lay criminal courts which, in turn, raises the question of why there are lay criminal courts at all WHY LAY CRIMINAL COURTS AT ALL? A bizarre system?

A criminal justice system relying on lay courts is, on the face of it, bizarre. The only academic study of lay courts in modern Scotland, Lay Justice?, asked a generation ago “[why] are people thirled to what might appear to be a haphazard and therefore unjust way of dealing with disputes?”.7

Z K Bankowski, N R Hutton and J J McManus, Lay Justice? (1987) 2.

More recently, a commentator in England and Wales echoed this sentiment, observing that “[m]any a foreign law student has difficulty grasping the fact that magistrates need have no legal education, undergo limited training before sitting in court, are unpaid, and sit only part-time”.8

L Zedner, Criminal Justice (2004) 17.

Indeed, she reached a conclusion echoing what is implicit in the McInnes Report, the 1973 White Paper, the views of earlier commentators and now the Gill Report, suggesting that “[t]he presence of the lay magistracy [in England and Wales] is probably best explained as a historical legacy that would be an unlikely feature of a modern, rationally conceived system”.9

Ibid. Cf her thoughts on the jury, at 16.

 Justifications? Sources for justifications

Given their survival despite such criticism, one might expect a clear conceptual framework for lay courts, and it is in England and Wales that one might most expect it. That jurisdiction is by far the greatest user of lay courts in the United Kingdom (if not the entire world), because (lacking a Sheriff Court equivalent for criminal matters), all criminal cases commence before the mainly lay Magistrates Court10

There are some 31,500 lay justices, but also some 100 full-time, and 150 part-time, professional District Judges (formerly Stipendiary Magistrates): see R Morgan and N Russell The Judiciary in the Magistrates’ Courts (2000) vii, ix, 26–29 and 109–110.

(either for committal, or as summary proceedings), and almost all finish there (as summary proceedings).

Such framework should, of course, provide current justifications. (The reasons why Edward III invented Justices of the Peace in 1361 – and James VI imported them 250 years later – shed limited light on justifications for today.) It could be based on Damaška's well-known thesis,11

M R Damaška, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986) especially chs I and II (although the argument is clearer in his “Structures of authority and comparative criminal procedure” (1975) 84 Yale LJ 480).

which posits that governmental authority is distributed in either hierarchical, or co-ordinated, fashion, and that this distribution is reflected in their legal systems. Damaška argues that co-ordinated authority, typified in “Anglo-American” jurisdictions, relies heavily upon lay officials, roughly equivalent to each other in status, and taking decisions in a practical, “common sense”, way. Indeed, he wrote of eighteenth- and nineteenth-century English justices of the peace that “[t]hese amateurs – country gentlemen – epitomized almost completely the ideal of co-ordinated officialdom”.12

Damaška, The Faces of Justice (n 11) 218.

However, as the criticism quoted earlier implies, the literature in England and Wales has not developed this (or, possibly, any relevant) line of thinking. Though extensive, the literature tends to eschew explicit argument about lay courts, offering only an implicit, but very strong, presumption in favour of them.13

See e.g. R Auld, Review of the Criminal Courts in England and Wales (2004) ch 1 paras 19 et seq and ch 4 passim (but see also Morgan and Russell, Magistrates’ Courts (n 10), a research paper for that review).

Such discussion as exists seems largely limited to narrative histories of the office of justice of the peace, consideration of acceptable levels of dilution of lay content by professional District Judges, and the listing of desirable judicial qualities. This produces a tangle of unexamined a priori assertions (e.g. lay judges are a good in themselves) and untested empirical statements (e.g. lay judges increase public confidence). Perhaps familiarity with lay courts over the centuries has concealed the need for a conceptual framework.

In fact, the most useful examination took place in Northern Ireland, where lay courts, as such,14

It is understood that paid “lay magistrates” (who replaced JPs) sit in pairs in the Youth Court with a professional District Judge, while Magistrates Courts, as such, are entirely staffed by professional District Judges (who replaced Resident Magistrates): Justice (Northern Ireland) Act 2002 ss 9–11, The District Judge (Magistrates’ Courts) Order 2008, SR 2008/154 (and see B Dickson The Legal System of Northern Ireland, 5th edn (2005) 45–46, 264–270 and 345–346.

are no longer used. This examination occurred precisely because Northern Ireland's political situation required history to be discounted, and first principles considered. It is found in the Review of the Criminal Justice System in Northern Ireland15

(2000): for associated research reports, see appendix B.

 which followed the Belfast Agreement. Research undertaken for it included consideration of lay courts.16

S Doran and R Glen, Lay Involvement in Adjudication (2000): despite its wide title, and discussion of “the modules [sic] of adjudication”, it focussed on lay courts.

 This did not of itself generate a conceptual framework, but it did include a literature review “to provide a theoretical background”,17

Para 1.02.

 and suggested that contemporary debate centred on three issues: “the actual right of persons to participate in the adjudicative process”, “the personality of the participants”, and “the actual process of participation”.18

Para 2.01.

 Arguments for lay courts

An examination of this threefold analysis to seek some “theoretical background” suggests that current justifications for lay courts can be boiled down to some five arguments, concerning respectively:

democracy: people in general should be involved in dispensing justice, as this supplies legitimacy and exercises control over government;

representativeness: representatives of the community should be involved in dispensing justice, as this tends to produce consequential benefits such as local knowledge, enhanced legitimacy, education of the local community, deterrence of future criminality, increased public confidence, effective channels for altruism, improved responsiveness and accountability, and inexpensive, flexible, informal and efficacious administration of justice;19

Para 2.02.

ability: lay persons have relevant skills, including “common sense”;

economics: lay courts are better value for money or, at least, cheaper;

tradition: lay courts have existed for centuries and manifest an important tradition of voluntary action.

 Usefully, these five arguments are reasonably consonant with three of the four “defences” or “justifications” of lay courts which Lay Justice? recorded Scottish lay justices as putting forward:20

Bankowski, Hutton and McManus, Lay Justice? (n 7) 100–113.

closeness to the community, including closeness in terms of class...

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